BIXBY V. South Carolina

Principal Attorney John Mills represents Mr. Steven Bixby in his post-conviction challenge in South Carolina state court to his sentence of death. Mr. Mills was asked to accept appointment to Mr. Bixby’s case because qualified attorneys in South Carolina largely either had a conflict of interest or was otherwise unable to accept appointment because of workload problems.

Mr. Bixby’s case garnered national attention because of his parents’ long-held extremist views, including views on property rights. Mr. Bixby and his parents were charged with the shooting deaths of two Abbeville, South Carolina law enforcement officials who encountered the Bixby’s after his parents threatened members of the South Carolina Department of Transportation who were widening the highway approximately one foot onto his parents’ property.

Mr. Bixby and his parents were each charged capitally. His father’s case terminated when he was involuntarily committed to the state mental hospital, having been found incompetent to stand trial. His mother was sentenced to life without possibility of parole after the South Carolina Supreme Court held that because she was not involved in the shooting she was not eligible for a sentence of death. Mr. Bixby alone was eligible for and received a death sentence. At trial, Mr. Bixby’s attorneys, to support a sentence of life without parole, argued that the jury should spare him because he had narcissistic personality disorder.

Mr. Mills’ appointment came on the heels of a directive to South Carolina trial courts from the South Carolina Supreme Court to expeditiously process capital post-conviction cases, which suggested that most cases could be completed within one year of appointment of counsel.

A RUSHED APPEAL

Mr. Bixby’s case was assigned to Greenville Judge Robin Stilwell. Judge Stilwell is a member of the South Carolina Army National Guard, and at the time of Mr. Mills’ appointment was scheduled to be deployed to Afghanistan for active duty. To complete the case before his deployment, counsel for Mr. Bixby would have had to identify all possible claims only five months after being appointed.

In chambers, off the record, Judge Stilwell informed the parties that he intended to complete the case prior to his deployment. He would conduct discovery, an evidentiary hearing, and enter a ruling within eight months of post-conviction counsel’s appointment. Mr. Mills noted that he was still learning about the case, and that the timeframe the judge suggested was unusually short, but, nonetheless accepted appointment, sure that the judge would reconsider the schedule he described.

Mr. Mills soon discovered that competently preparing for the hearing before Judge Stilwell’s deployment would be impossible. Simply reading the file would occupy more waking hours than existed between the time of his appointment and when the appeal was due. Despite Judge Stilwell’s wishes, the case would require more time than the few remaining months before his deployment.

Mr. Mills asked Judge Stilwell for more time, explaining that even the most rudimentary tasks required in a death penalty case would take more than the time allotted. Judge Stilwell denied the request.

Mr. Mills and his co-counsel then moved to withdraw, citing their inability to competently represent Mr. Bixby in the timeframe imposed. Judge Stilwell denied that motion, imploring them to abide by their “moral conscience” and to soldier on, despite what he called the “meager slings and arrows of a Scheduling Order.”

A CHANGE IN COURSE

Mr. Mills appealed Judge Stilwell’s scheduling order to the South Carolina Supreme Court, the same court that had urged the lower courts to complete review of the cases within a year. Initially, that court’s Chief Justice dismissed the appeal. After a request for the full court to reconsider, the South Carolina Supreme Court in an unpublished order vacated the scheduling order and reassigned the case to a different judge.

Mr. Mills and his co-counsel would now have more time to investigate Mr. Bixby’s case and prepare for a hearing.

BRAIN DAMAGE, SEXUAL ABUSE, AND PSYCHOSIS

At trial, Mr. Bixby’s attorneys obtained an order to have a brain scan taken and analyzed. Despite having the scan taken and despite having an order finding it “reasonably and necessary” to have it analyzed, they failed to do have it analyzed. Both of his trial counsel, each prominent attorneys in South Carolina, admitted that they “dropped the ball” and had no reason for failing to have the scan analyzed.

Mr. Mills and his co-counsel had the scan analyzed. It uncovered substantial damage to parts of Mr. Bixby’s brain that are associated with regulating emotion, including the fight or flight response. It also uncovered abnormalities in the region associated with impulse control. The scans provided powerful evidence that the jury should have been able to consider in its decision about whether to show Mr. Bixby mercy.

As part of Mr. Mills’ investigation, he also learned that Mr. Bixby had been sexually abused by his older sister. The abuse had been disclosed to one of the defense experts at trial, but, inexplicably, was never conveyed to the jury. Likewise, Mr. Bixby’s psychotic delusions—including his belief that the prison was injecting him with tracking devices—were known to trial counsel, but were not presented to the jury. The sexual abuse and psychotic delusions are the types of evidence that juries regularly rely on when declining to impose a death sentence.

A PLEA FOR MERCY

The media attention and atmosphere of Mr. Bixby’s case undoubtedly put enormous pressure for the local prosecutor and the jurors to deliver a death sentence. Lacking the powerful evidence of Mr. Bixby’s limitations and vulnerability, the trial reached the predictable result.

However, after fully investigating Mr. Bixby’s case and presenting the court with the new evidence of Mr. Bixby’s brain damage, sexual victimization, and mental illness, Abbeville’s local newspaper pled for mercy. The editorial board explained, “Our judicial system does not allow a mentally ill person to be put to death” and called for the state to “[t]ake Bixby off Death Row and simply lock him up for life.”

Mr. Bixby’s plea is currently pending before the South Carolina Supreme Court.

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